- Land and Property Laws in Israel
Land and Property laws in Israel refers to the legal framework governing land and property issues in
Israel. Following its establishment, Israel designed a system of law that legitimized both a continuation and a consolidation of the nationalisationof land and property, a process that it had begun decades earlier. For the first few years of Israel’s existence, many of the new laws continued to be rooted in earlier Ottoman and British law. These laws were later amended or replaced altogether.
In 1945, about 85% of the arable land in Palestine was owned by Arabs. [Palestine Conciliation Commission- Progress Report to the United Nations General Assembly- A- 1985- November 1951 volumes 1-2: 1947-1974 [http://www.mfa.gov.il/MFA/Foreign%20Relations/Israels%20Foreign%20Relations%20since%201947/1947-1974/7%20Palestine%20Conciliation%20Commission-%20Progress%20Repo] ] [Before Their Diaspora, Institute for Palestine Studies, 1984 [http://www.passia.org/palestine_facts/MAPS/Zionist_and_Palestinian_landownership.htm] ] [Village Statistics of 1945: A Classification of Land and Area ownership in Palestine [http://www.palestineremembered.com/download/VillageStatistics/4-The%20Land%20And%20Its%20Ownership/Page-019.jpg] ] By 1949, some 700,000 Palestinians had been displaced and/or fled from their lands and villages. Israel was now in control of some 20.5 million
dunams (approx. 20 500 km²) of lands in what had been Mandate Palestine. In 1949, only about 8 percent (approx. 1,650 km²) of all the Israeli-controlled lands were Jewish-owned, 6% (approx. 1,300 km²) were Arab-owned, with the balance held under some form of government control [Abu Sitta, Salman (2001): "From Refugees to Citizens at Home". London: Palestine Land Society and Palestinian Return Centre, 2001.] .
The first challenge facing Israel was to transform its control over land into legal ownership. This was the motivation underlying the passing of several of the first group of land laws ["Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine". Publishers: COHRE & BADIL, May 2005, p. 37.] .
In order to purchase land for the resettlement of Jews in their ancient homeland, the Fifth Zionist Congress (1901) created a private charitable organization called the Jewish National Fund (JNF). Land purchased by the JNF was leased out on a long-term basis to create
kibbutzimand other forms of Jewish settlement. However, in the years leading up to the establishment of the state, 1936-1947, the British administration in Palestine introduced a series of land transfer regulations that divided the country into zones. Jews were prohibited from buying land in Zone A, which accounted for 63 percent of the total land area of Palestine. ["Between Jerusalem and Hebron: Jewish Settlement in the Pre-state Period," Yossi Katz, Bar Ilan University Press, Ramat Gan, 1998, p.9] Zone A included the Jerusalemenvirons and Hebronmountains. Purchases in Zone B, accounting for another 32 percent of the land, were also severely restricted. ["Between Jerusalem and Hebron: Jewish Settlement in the Pre-state Period," Yossi Katz, Bar Ilan University Press, Ramat Gan, 1998, p.9]
After the establishment of the state
After the declaration of independence in
May 14, 1948, state-owned lands formerly in the possession of British Mandatory Authorities, together with property abandoned by Arab refugees, passed into the control of the new Israeli government ["History of Land Ownership in Israel". Palestine Facts. Taken from www.palestinefacts.org [http://www.palestinefacts.org/pf_1991to_now_israel_land.php] ] . The newly formed Israeli ministries, committees and departments had begun taking over functions performed earlier by ‘National Institutions’, that is, the JNF, the Jewish Agency (JA) and others. One of the first steps adopted by the new state was the reactivation of the "Defence [Emergency] Regulations" adopted earlier by the British in 1939 (and later repealed). Since British regulations had applied to the whole country, the Government of Israel passed the "Law and Administration Ordinance [Amendment] Law  " to reverse the British repeal and reinstate these "Emergency Regulations" ["Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine". Publishers: COHRE & BADIL, May 2005, p. 37.] . Some of this land was sold by the government to the JNF, which had developed expertise in reclaiming and developing waste and barren lands and making them productive.
In 1960 under "Basic Law: Israel Lands", JNF-owned land and government-owned land were together defined as "Israel lands," and the principle was laid down that such land would be leased rather than sold. The JNF retained ownership of its land, but administrative responsibility for the JNF land, and also for government-owned land, passed to a newly created agency called the Israel Land Administration or ILA ["History of Land Ownership in Israel". Palestine Facts. Taken from www.palestinefacts.org [http://www.palestinefacts.org/pf_1991to_now_israel_land.php] ] . The lease principle is hardly new to the area however as it was practiced for centuries under the Ottoman tapu system. To this day, the Land Registration Office is commonly known in Israel as the "tabu", the Arabic pronunciation of the Turkish "tapu".
According to COHRE and BADIL (p. 38), land and property laws in Israel can be seen as evolving through three main phases or categories:
#The imperative to physically acquire and colonise lands vacated by Palestinians who fled or were expelled, and to prevent their return;
#The necessity of legalising such land acquisitions in order to pre-empt any future claims made by refugees or their descendents;
#The goal of proceeding with the nationalisation/Judaisation process in areas of the country where Arabs still predominated.
Initial 'Emergency Laws' and 'Regulations'
These laws refer to those adopted immediately upon assuming power. The Government of the State of Israel issued a series of laws and regulations to formalise its approach to land issues. Among the most noteworthy are the following:
The same day as the declaration of independence, Israel enacted this law which repeals the Issued the same day as the declaration of the State, this proclamation repeals the
White Paper of 1939and sections 13 and 15 of the "1941 Immigration Ordinance". It also repeals the "1940 Land Transfer Regulations" retroactively to 18 May 1939, invalidating transactions conducted since then [Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine. Publishers: COHRE & BADIL, May 2005, p. 39.] .
Law and Administration Ordinance, 5708-1948 [http://www.geocities.com/savepalestinenow/israellaws/fulltext/lawandadministrationord.htm]
This law defines the competences and composition of the Provisional Government. Among other aspects, the law includes the repeal of sections 13 to 15 of the "1941 Immigration Ordinance" and regulations 102 to 107C of the "1945 Defence (Emergency) Regulations", in order to allow Jews who entered the country illegally under Mandate laws to remain as legal immigrants. The law confirms that "The 1940 Land Transfers Regulations" are (...) repealed retroactively from the 18th May, 1939" to allow ‘new claims’ to be filed. It also states that "Palestine", wherever appearing in the law, shall henceforth be read as "Israel" in any new law. The law also states that unless explicitly revoked, legal validity is given to all regulations and orders issued by the Jewish Agency and other Jewish groups on matters concerning supplies and services ["Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine". Publishers: COHRE & BADIL, May 2005, p. 39.] .
Area of Jurisdiction and Powers Ordinance, 5708-1948
Given that during the
1948 Arab-Israeli warIsrael had conquered lands far beyond those allocated to it under the 1947 UN Partition Plan, this law states that:
Any law applying to the whole of the State of Israel shall be deemed to apply to the whole of the area including both the area of the State of Israel and any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel ["Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine". Publishers: COHRE & BADIL, May 2005, p. 40.] .
Article 3 of the Law makes it retroactive and effective from the day of the reestablishment of the Jewish state - the 6th of Iyar, 5708 (15th May, 1948) [The text can be read in Shusteff, Boris (2005): "The Real Law Breakers". Center's Maccabean Online, July 17, 2005. Taken from www.think-israel.org [http://www.think-israel.org/shusteff.lawbreakers.html] ] .
Abandoned Areas Ordinance, 5708-1948 [http://www.geocities.com/savepalestinenow/israellaws/fulltext/abandonedareasord.htm]
This law defines "abandoned area" in the following terms:
"Abandoned area" means any area or place conquered by or surrendered to armed forces or deserted by all or part of its inhabitants, and which has been declared by order to be an abandoned area.All properties in these areas are also declared ‘abandoned’ and the Government is authorised to issue instructions as to the disposition of such properties ["Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine". Publishers: COHRE & BADIL, May 2005, p. 40.] :
A Minister empowered to make regulations for the implementation of this Ordinance may, subject to the approval of the Prime Minister, make regulations, prescribe punishments therein and issue directions concerning any movable or immovable property within any abandoned area.
Defence (Emergency) Regulations [http://www.geocities.com/savepalestinenow/emergencyregs/essays/emergencyregsessay.htm]
Article 125 states:
A Military Commander may by order declare any area or place to be a closed area for the purposes of these Regulations. Any person who, during any period in which any such order is in force in relation to any area or place, enters or leaves that area or place without a permit in writing issued by or on behalf of the Military Commander shall be guilty of an offence against these Regulations.
According to Kirshbaum, the Law has as effect that "no one is allowed in or out without permission from the Israeli Military". "This regulation has been used to exclude a land owner from his own land so that it could be judged as unoccupied, and then expropriated under the "Land Acquisition (Validation of Acts and Compensation) Law (1953)" (see below). Closures need not be published in the Official Gazette" [Kirshbaum, David A. "Israeli Emergency Regulations and The Defense (Emergency) Regulations of 1945". Israel Law Resource Center, February, 2007.] .
Emergency Regulations (Security Zones) Law, 5709-1949
According to the Journal of Palestine Studies, the law designated an area as "security zone" which meant that no one couldpermanently live in, enter, or be in said zone ["Apartheid, Israeli Style". Journal of Palestine Studies, Vol. 11, No. 4, [Also Vol. 12, no. 1] . Special Issue: The War in Lebanon (Summer, 1982), pp. 270-273] . According to COHRE and BADIL (p.40), "this measure was used extensively in various parts of the country, including areas in the Galilee, near the Gaza Strip and close to the borders. Lands so acquired would often be sold to the JNF. These regulations remained in place until 1972."
Emergency Regulations (Cultivation of Waste [Uncultivated] Lands) Law, 5709-1949 [http://www.geocities.com/savepalestinenow/emergencyregs/fulltext/erwastelandcultivationeov.htm]
According to COHRE and BADIL (p.40) this law was originally enacted in 1948 and amended in 1951 as the "Emergency Regulations (Cultivation of Waste Lands) Law, 5711-1951,". This law authorises the Ministry of Agriculture to declare lands as ‘waste’ lands (Article 2) and to take control over ‘uncultivated’ lands (Article 4). Article 2 states:
The Minister of Agriculture may warn the owner of waste land to cultivate the land or to ensure-that it is cultivated.Article 4 reads:
If the owner of the waste land does not apply to the Minister of Agriculture as specified in regulation 3, or if the Minister of Agriculture is not satisfied that the owner of the land has begun or is about to begin or will continue to cultivate the land, the Minister of Agriculture may assume control of the land in order to ensure its cultivation.
COHRE and BADIL (p.40) consider that "this law operated in conjunction with other laws including those declaring ‘security areas’. Oncepeople (Arabs) were barred from their lands, these could be defined as ‘uncultivated’ and seized".
Emergency Land Requisition (Regulation) Law, 5710-1949 [http://www.geocities.com/savepalestinenow/emergencyregs/fulltext/emergencylandreglaw.htm]
This law repeals the earlier "Emergency Regulations (Requisition of Property) Law, 5709-1948". The law authorises the requisition of land when (Article 3):
...the making of the order is necessary for the defence of the state, public security, the maintenance of essential supplies or essential public services, the absorption of immigrants or the rehabilitation of ex-soldiers or war invalids.The law includes clauses concerning the requisition of houses (chapter three), and states (Article 22b) that:
A competent authority may use force to the extent required for the carrying into effect of an order made by a competent authority or a decision given by an appeal committee under this Law.According to COHRE and BADIL (p.41), "the law retroactively legalised land and housing requisitions that were carried out under existing emergency regulations. The law was amended in 1952 and 1953. A 1955 amendment, "Land Requisition Regulation (Temporary Provision) Law, 5715- 1955", allows the Government to retain property seized under the law for longer than the three years originally specified. Along with a later (1957) amendment, the law also specified that any property held after 1956 would be determined to havebeen acquired on the basis of the British "Land (Acquisition for Public Purposes) Ordinance of 1943".
The 'Absentees Property Law'
‘Absentees’ property’ laws were several laws which were first introduced as emergency ordinances issued by the Jewish leadership but which after the war were incorporated into the laws of Israel. As examples of the first type of laws are the "Emergency Regulations (Absentees’ Property) Law, 5709-1948 (December)" which according to article 37 of the "Absentees Property Law, 5710-1950" was replaced by the latter [See article 37 [http://domino.un.org/UNISPAL.NSF/d80185e9f0c69a7b85256cbf005afeac/e0b719e95e3b494885256f9a005ab90a!OpenDocument] ] ; the "Emergency Regulations (Requisition of Property) Law, 5709-1949", and other related laws ["Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine". Publishers: COHRE & BADIL, May 2005, p. 41.] .
According to COHRE and BADIL (p.41), unlike other laws that were designed to establish Israel’s ‘legal’ control over lands, this body of law focused on formulating a ‘legal’ definition for the people (mostly Arabs) who had left or been forced to flee from these lands. Specific laws in this category include:
*"The Absentees’ Property Law, 5710- 1950"
*"The Land Acquisition (Validation of Acts and Compensation) Law, 5713-1953"
*"Absentees’ Property (Eviction) Law, 5718-1958"
*"Absentees’ Property (Amendment No.3) (Release and Use of Endowment Property) Law, 5725-1965"
*"Absentees’ Property (Amendment No. 4) (Release and Use of Property of Evangelical Episcopal Church) Law, 5727-1967"
*"Absentees’ Property (Compensation) Law, 5733-1973"
As a result, two million dunams were confiscated and given to the custodian, who later transferred the land to the development authority. This law created the novel citizenship category of "present absentees" (nifkadim nohahim), that is, Israeli Arabs who enjoyed all civil rights-including the right to vote in the Knesset elections-except one: the right to use and dispose of their property". About 30,000-35,000 Palestinians became "
present absentees" - persons present at the time but considered absent [Benvenisti, Meron (2002): "Sacred Landscape". University of California Press, p.201] .
According to Flapan [Flapan, Simha (1987): "The Birth of Israel, Myths and Realities". London and Sydney: Croom Helm, 1987] , "a detailed account of exactly how "abandoned" Arab property assisted in the absorption of the new immigrants was prepared by
It is difficult to overestimate the tremendous role this lot of abandoned Arab property has played in the settlement of hundreds of thousands of Jewish immigrants who have reached Israel since the proclamation of the state in May 1948. Forty-seven new rural settlements established on the sites of abandoned Arab villages had by October 1949 already absorbed 25,255 new immigrants. By the spring of 1950 over 1 million dunams had been leased by the custodian to Jewish settlements and individual farmers for the raising of grain crops.
Large tracts of land belonging to Arab absentees have also been leased to Jewish settlers, old and new, for the raising of vegetables. In the south alone, 15,000 dunams of vineyards and fruit trees have been leased to cooperative settlements; a similar area has been rented by the Yemenites Association, the Farmers Association, and the Soldiers Settlement and Rehabilitation Board. This has saved the Jewish Agency and the government millions of dollars. While the average cost of establishing an immigrant family in a new settlement was from $7,500 to $9,000, the cost in abandoned Arab villages did not exceed $1,500 ($750 for building repairs and $750 for livestock and equipment).
Abandoned Arab dwellings in towns have also not remained empty. By the end of July 1948, 170,000 people, notably new immigrants and ex-soldiers, in addition to about 40,000 former tenants, both Jewish and Arab, had been housed in premises under the custodian's control; and 7,000 shops, workshops and stores were sublet to new arrivals. The existence of these Arab housesvacant and ready for occupation-has, to a large extent, solved the greatest immediate problem which faced the Israeli authorities in the absorption of immigrants. It also considerably relieved the financial burden of absorption [Schechtman, Joseph (1952): "The Arab Refugee Problem". New York, pp. 95-96, 100-01.] .
How much of Israel's territory consists of land confiscated with the Absentee Property Law is uncertain and much disputed.
Robert Fiskinterviewed the Israeli Custodian of Absentee Property, who estimates this could amount to up to 70% of the territory of Israel, the West Bank and the Gaza Strip:
:The Custodian of Absentee Property does not choose to discuss politics. But when asked how much of the land of the state of Israel might potentially have two claimants - an Arab and a Jew holding respectively a British Mandate and an Israeli deed to the same property - Mr. Manor [the Custodian in 1980] believes that 'about 70 percent' might fall into that category (
Robert Fisk, 'The Land of Palestine, Part Eight: The Custodian of Absentee Property', "The Times", December 24, 1980, quoted in his book "Pity the Nation: Lebanon at War").The Jewish Virtual Library, estimates that Custodial and Absentee land comprises 12% of Israel's total territory.cite web | url = http://www.jewishvirtuallibrary.org/jsource/Society_&_Culture/land.html | title = Israel Lands: Privatization or National Ownership? | publisher = Jewish Virtual Library | accessdate = 2007-05-24]
The Jewish National Fund, from "Jewish Villages in Israel", 1949:
Of the entire area of the State of Israel only about 300,000-400,000 dunums -- apart from the desolate rocky area of the southern Negev, at present quite unfit for cultivation -- are State Domain which the Israeli Government took over from the Mandatory regime. The J.N.F. and private Jewish owners possess under two million dunums. Almost all the rest belongs at law to Arab owners, many of whom have left the country. The fate of these Arabs will be settled when the terms of the peace treaties between Israel and her Arab neighbours are finally drawn up. The J.N.F., however, cannot wait until then to obtain the land it requires for its pressing needs. It is, therefore, acquiring part of the land abandoned by the Arab owners, through the Government of Israel, the sovereign authority in Israel.
Whatever the ultimate fate of the Arabs concerned, it is manifest that their legal right to their land and property in Israel, or to the monetary value of them, will not be waived, nor do the Jews wish to ignore them. ... [C] onquest by force of arms cannot, in law or in ethics, abrogate the rights of the legal owner to his personal property. The J.N.F., therefore, will pay for the lands it takes over, at a fixed and fair price. ["Jewish Villages In Israel." The
Jewish National Fund(Keren Kayemeth Leisrael). Summer 1949. Jerusalem. pg XXI.]
The absentee property played an enormous role in making Israel a viable state. In 1954, more than one third of Israel's Jewish population lived on absentee property and nearly a third of the new immigrants (250,000 people) settled in urban areas abandoned by Arabs. Of 370 new Jewish settlements established between 1948 and 1953, 350 were on absentee property (Peretz, "Israel and the Palestinian Arabs", 1958).
"The Absentees’ Property Law, 5710- 1950"
This law replaced the "Emergency Regulations (Absentees’ Property) Law, 5709-1948". According to Jiryis (p. 84) [Jiryis, Sabri (1981): "Domination by the Law". Journal of Palestine Studies, Vol. 11, No. 1, 10th Anniversary Issue: Palestinians under Occupation. (Autumn, 1981), pp. 67-92.] , the definition of "absentee" in the law was framed in such a way as to ensure that it applied to every Palestinian or resident in Palestine who had left his usual place of residence in Palestine for any place inside or outside the country after the adoption of the partition of Palestine resolution by the
UN. Article 1(b) states that "absentee" means:
"absentee" means -(1) a person who, at any time during the period between the 16th Kislev, 5708 (29th November, 1947) and the day on which a declaration is published, under section 9(d) of the Law and Administration Ordinance, 5708-1948(1), that the state of emergency declared by the Provisional Council of State on the 10th Iyar, 5708 (19th May, 1948)(2) has ceased to exist, was a legal owner of any property situated in the area of Israel or enjoyed or held it, whether by himself or through another, and who, at any time during the said period -:(i) was a national or citizen of the Lebanon, Egypt, Syria, SaudiArabia, Trans-Jordan, Iraq or the Yemen, or:(ii) was in one of these countries or in any part of Palestine outside the area of Israel, or:(iii) was a Palestinian citizen and left his ordinary place of residence in Palestine::(a) for a place outside Palestine before the 27th Av, 5708 (1st September, 1948); or::(b) for a place in Palestine held at the time by forces which sought to prevent the establishment of the State of Israel or which fought against it after its establishment;(2) a body of persons which, at any time during the period specified in paragraph (1), was a legal owner of any property situated in the area of Israel or enjoyed or held such property, whether by itself or through another, and all the members, partners, shareholders, directors or managers of which are absentees within the meaning of paragraph (1), or the management of the business of which is otherwise decisively controlled by such absentees, or all the capital of which is in the hands of such absentees;
According to COHRE and BADIL (p.41), the provisions in the law made sure that the term 'person' did not apply to
Jews. The law also applied to Arabs who had become citizens of the State of Israel but were not in their usual place of residence as defined by the law. In this case, they were referred to as 'present absentees' and many lost their lands.
The Law then appointed a Custodianship Council for Absentees' Property, whose president was to be known as the Custodian of Absentees' Property (Article 2). The law then made these properties the legal holdings of the Custodian. According to Art. 4.(a)(2):
every right an absentee had in any property shall pass automatically to the Custodian at the time of the vesting of the property; and the status of the Custodian shall be the same as was that of the owner of the property.
According to COHRE and BADIL (p.41), those who were found to occupy property in violation of this law could be expelled, and those who built on such property could have their structures demolished. The law came to apply not only to Palestinians who fled butalso to those who were away from their regular places of residence (as described in the previous paragraph).
According to the "Israel Government Yearbook, 5719 (1958)" (p. 235), the "village properties" of absentee Arabs "which was appropriated by the Custodian of Absentees' Property" included " [the land of] some 350 completely abandoned or semi-abandoned [Arab] villages, the aggregate area of which was about three-quarters of a million dunums .... Among the agricultural properties were 80,000 dunums of abandoned groves... [and] more than 200,000 dunums of plantations were taken over by the custodian. "It was estimated that "the urban properties ... include [d] 25,416 buildings in which there are 57,497 dwellings and 10,727 business and trade premises." [Jiryis, Sabri (1981): "Domination by the Law". Journal of Palestine Studies, Vol. 11, No. 1, 10th Anniversary Issue: Palestinians under Occupation. (Autumn, 1981), p. 89]
According to COHRE and BADIL (p. 41), "estimates of the total amount of ‘abandoned’ lands to which Israel laid claim vary between 4.2 and 5.8 million dunum (4 200-5 800 km²). Between 1948 and 1953 alone, 350 of the 370 new Jewish settlements were created on lands confiscated under the Absentees’ Property Law."
The Absentees’ Property Law underwent several amendments, including:
* The "Absentees’ Property (Amendment) Law, 5711-1951" [http://www.geocities.com/savepalestinenow/israellaws/fulltext/absenteepropertyl510306.htm] ,
* The "Absentees’ Property (Amendment) Law, 5716-1956" [http://www.geocities.com/savepalestinenow/israellaws/fulltext/absenteepropertyl560214.htm] . Both amendments clarifying rental arrangements and tenant protection rights on such property.
* The "Absentees’ Property (Amendment No. 5) (Increase of Payment to Absentees’ Dependants and to Absentees) Law, 5727-1967" [http://www.geocities.com/savepalestinenow/israellaws/fulltext/absenteepropertyl670807.htm] and subsequent amendments to the latter.
The "Land Acquisition (Validation of Acts and Compensation) Law, 5713-1953" [http://www.geocities.com/savepalestinenow/israellaws/fulltext/landacquisitionlaw.htm]
According to COHRE and BADIL (p. 42), the Government of Israel did not automatically gain title to lands seized under the Absentees’ Property Law. This was accomplished under the "Land Acquisition (Validation of Acts and Compensation) Law, 5713-1953".This law legalised expropriations (retroactively in many cases) for military purposes or for the establishment of (Jewish)settlements.
The law allows the Government to claim the property of lands which are not in the possession of its owner as of
1 April 1952. Article 2 (a) states:
Property in respect of which the Minister certifies by certificate under his hand--:(1) that on the 6th Nisan, 5712 (1st April, 1952) it was not in the possession of its owners; and:(2) that within the period between the 5th Iyar, 5708 (14th May, 1948) and the 6th Nisan, 5712 (Ist April 1952) it was used or assigned for purposes of essential development, settlement or security; and :(3) that it is still required for any of these purposes
The further states the monetary compensation for those losing their lands and that in the case were the lands corresponded to agricultural lands, where those lands formed their main source of livelihood, lands elsewhere would be offered. Article 3 reads:
(a) The owners of acquired property are entitled to compensation therefore from the Development Authority. The compensation shall be given in money, unless otherwise agreed between the owners and the Development Authority. The amount of compensation shall be fixed by agreement between the Development Authority and the owners or, in the absence of agreement, by the Court, as hereinafter provided.(b) Where the acquired property was used for agriculture and was the main source of livelihood of its owner, and he has no other land sufficient for his livelihood, the Development Authority shall, on his demand, offer him other property, either for ownership or for lease, as full or partial compensation. A competent authority, to be appointed for this purpose by the Minister, shall, in accordance with rules to be prescribed by regulations, determine the category, location, area, and, in the case of lease, period of lease (not less than 49 years) and the value of the offered property, both for the purpose of calculating the compensation and for determination of the sufficiency of such property for a livelihood.(c) The provisions of subsection (b) shall add to, and not derogate from, the provisions of subsection (a).According to Kedar (p. 153), until 1959, compensation was calculated on the basis of the 1950 land values. The author cites a 1965 ILA report which shows that over 1.2 million dunum (about 1 200 km²) of Arab land were taken in this manner [Kedar, Alexandre (1996): "Israeli Law and the Redemption of Arab Land 1948-1969". Thesis presented in partial fulfilment of the Requirements for the Degree of Doctor of Juridical Science, Harvard University, Cambridge, MA, May 1996.] .
The "Absentees’ Property (Amendment No.3) (Release and Use of Endowment Property) Law, 5725-1965" [http://www.geocities.com/savepalestinenow/israellaws/fulltext/absenteepropertyl650202.htm]
This law extends the scope of the Absentees’ Property Law and earlier regulations concerning the Muslim religious endowment, the
Waqf. Article 29A (c) states:
For the purposes of this section and of sections 29B to 29H, "endowment property" means Muslim waqf property being immovable property validly dedicated.
According to COHRE and BADIL (p. 41), it allows the Government to confiscate vast amounts of
Muslim(charity) land and other properties, including cemeteries and mosques, and place them under Government administration. According to the law, income from these properties would be used in part to build institutions and provide services for the Muslim inhabitants in areas where such property is located. The law amends the 1950 law in the following way:
In section 4 of the Absentees' Property Law, 5710-1950(1) (hereinafter referred to as "the principal Law"), the following subsection shall be inserted after subsection (a): :(1) Where any property is an endowment under any law, the ownership thereof shall vest in the Custodian free from any restriction, qualification or other similar limitation prescribed, whether before or after the vesting, by or under any law or document relating to the endowment if the owner of the property, or the person having possession or the right of management of the property, or the beneficiary of the endowment, is an absentee. The vesting shall be as from the 10th Kislev, 5709 (12th December, 1948) or from the day on which one of the aforementioned becomes an absentee, whichever is the later date.:(2) The provisions of this subsection shall not void any restriction, qualification or other similar limitation prescribed by or under this Law or imposed by the Custodian and shall not void any transactions effected by him.".(b) This section shall have effect retroactively as from the date of the coming into force of the principal Law.
According to Benvenisti:
"Most Waqf property in Israel was expropriated under the Absentee proberty Law (giving rise to the sarcastic quip -"Apparently God is an absentee [in Israel] ") and afterward handed over to the Development Authority, ostensibly because this was necessary to prevent its being neglected, but actually so as to make it possible to sell it. Only about one-third of Muslim Waqf property, principally mosques and graveyards that were currently in use, was not expropriated. In 1956 its administration was turned over to the Board of Trustees of the Muslim Waqf, which by then was made up of collaborators appointed by the authorities. These "trustees" would sell or "exchange" land with the ILA without any accountability to the Muslim community. Anger over these deeds led to acts of violence within the community, including assassinations." [Benvenisti, Meron (2000): "Sacred Landscape". University of California Press, p.297-298] .
The "Absentees’ Property (Compensation) Law, 5733-1973" [https://www.jewishvirtuallibrary.org/jsource/Peace/absentee.html]
This law establishes the procedure to compensate owners of lands which have been confiscated under the "Absentees’ Property Law (1950)". It establishes the requirements to be eligible for compensation (Article 1):
The persons entitled to compensation are all those who were Israel residents on 1 July 1973, or became residents thereafter, and prior to the property becoming vested in the Custodian of Absentees' Property were:1.the owners of property, including their heirs, or:2.the tenants only of urban property, including spouses living with them at the last mentioned date, or:3.the lessees of property, or:4.the owners of any easement in property.
Other provisions specify the time limit legally allowed for filing a claim, whether compensation would be awarded in cash or bonds (depending on circumstances), the payment schedule (generally over a fifteen year period) and other provisions. Appended to the law is a detailed schedule of how compensation is to be calculated for each type of property, urban or agricultural. Some provisions of this law were amended in later years ["Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine". Publishers: COHRE & BADIL, May 2005, p. 42.] .
Laws enacted to legalise further acquisition of depopulated lands, and related laws
"Land (Acquisition for Public Purposes) Ordinance (1943)"
This ordinance was originally enacted by the British in 1943 and later used by Israel to authorise the confiscation of lands for Government and ‘public’ purposes (see "
eminent domain"). These included building Government offices, creating lands and parks, and suchlike. Kedar (p.155) describes this law as “the main general land expropriation law in force in Israel today”.
A 1964 amendment to this law, "Acquisition for Public Purposes (Amendment of Provisions) Law, 5724-1964", specifies procedures to be followed in the acquisition of lands based on this and other laws, including the original "Land (Acquisition for Public Purposes) Ordinance (1943)", the "Town Planning Ordinance (1936)", and the "Roads and Railways (Defence and Development) Ordinance (1943)".The 1964 amendment also defines circumstances under which no compensation would be offered to those whose lands had been expropriated; generally, where the expropriation had occurred prior to the coming into force of this law. Additional amendments corrected various laws under which such lands might be expropriated, substituting Israeli laws for earlier British versions and clarifying rights to compensation.
According to COHRE and BADIL (p. 43), Israel used this law extensively to expropriate Palestinians lands. Many Palestinians challenged the expropriations and did not accept compensation. A 1978 amendment to the law, "Acquisition for Public Purposes (Amendment of Provisions) (Amendment No.3) Law, 5738-1978", addresses this issue by decreeing that where the owner refuses compensation or does not give consent within the time allotted, these funds would be deposited with the Administrator-General in the name of the owner. However, this provision has no bearing on the matter of the expropriation itself. According to the COHRE and BADIL study, lands acquired under this law were used for the building of new Jewish settlements or other ventures from which Arab Palestinians with Israeli citizenship were excluded. The Jewish-dominated sector of
Upper Nazarethwas created in this manner and was the subject of several lawsuits filed at the Supreme Court.
According to Fast Magazine, with the law 40 percent of the owner’s land can be confiscated without compensation and public purposes are usually Jewish: From 1200 dunams confiscated in Nazareth for public purposes, 80 dunams were used for public buildings and the rest was used to build Jewish housing [Article in Fast Magazine [http://www.seamless-israel.org/images/online%20magazine/Magazine_lexicon_J-L.html] ] .
"Jerusalem Military Government (Validation of Acts) Ordinance, 5709-1949"
According to COHRE and BADIL (p. 41), this law extends Israeli jurisdiction to ‘the Occupied Area of Jerusalem’ (the western part of Jerusalem that was incorporated into Israel in 1948). It declares that all orders and regulations enacted by the Military Governor or other Government ministries shall be given the force of law.
"Development Authority (Transfer of Property) Law, 5710-1950" [http://www.geocities.com/savepalestinenow/israellaws/fulltext/devauthoritylaw.htm]
According to COHRE and BADIL (p.42), the ‘Authority for the Development of the Country’ (or the ‘Development Authority’) was established to work with relevant Government agencies to acquire and prepare lands for the benefit of newly arriving Jewish immigrants. Vast amounts of land allocated for this purpose were bought from the ‘Custodian of Absentee Property’. Pursuant to this law, lands passing into the hands of the State or to JNF control would be deemed inalienable. Article 3(4)(a) reads:
The Development Authority is competent::to sell or otherwise dispose of, let, grant leases of, and mortgage property;provided that::(a) the Development Authority shall not be authorised to sell, or otherwise transfer the right of ownership of, property passing into public ownership, except to the State, to the Jewish National Fund, to an institution approved by the Government, for the purposes of this paragraph, as an institution for the settlement of landless Arabs, or to a local authority; the right of ownership of land so acquired may not be re-transferred except, with the consent of the Development Authority, to one of the bodies mentioned in this subparagraph;::(b) the Development Authority shall not be authorised to sell immovable property not being land passing into public ownership, unless such property has first been offered to the Jewish National Fund, and the Jewish National Fund has not agreed to acquire it within a period fixed by the Development Authority;::(c) the total area of immovable property, not being land passing into public ownership, which the Development Authority may sell, or the right of ownership of which it may otherwise transfer, shall not exceed 100,000 dunams, but immovable property acquired by any of the bodies mentioned in subparagraph (a) shall not be taken into account for the purposes of this subparagraph;::(d) the sale, or the transfer of the right of ownership in any other way, of immovable property, being land passing into public ownership or other immovable property, shall be effected by decision of the Government in each individual case;
"Prescription Law, 5718-1958" [http://www.geocities.com/savepalestinenow/israellaws/fulltext/prescriptionlaw.htm]
The Prescription Law was first enacted in 1958 and amended in 1965. It repeals critical provisions of, and reverses Britishpractices in relation to, the "Ottoman Land Code (1858)".
According to COHRE and BADIL (p. 44), the "Prescription Law" is one of the most critical to understanding the legal underpinnings of Israel’s acquisition of Palestinian lands. Although not readily apparent in the language of the law, the purpose behind this legislation was to enable Israel to claim as ‘State lands’ areas where Palestinians still predominated and where they could still assert their own claims on the land (for example, in the north of the country). The authors claim that this law, in conjunction with the "Land (Settlement of Title) Ordinance (Amendment) Law, 5720-1960", the "Land (Settlement of Title) Ordinance (New Version), 5729-1969" and the "Land Law, 5729-1969", was designed to revise criteria related to the use and registration of Miri lands – one of the most prevalent types in Palestine – and to facilitate Israel’s acquisition of such land.
Under this law, farmers are required to submit documentation proving uninterrupted cultivation of designated plots of landover a 15-year period (the ‘prescription’ period). Article 5 states:
The period within which a claim in respect of which an action has not been brought shall be prescribed (such period being hereinafter referred to as "the period of prescription") shall be :(1) in the case of a claim not relating to land - seven years;:(2) in the case of a claim relating to land - fifteen years or, if the land has been registered in the land register after settlement of title in accordance with the Land (Settlement of Title) Ordinance(1), twenty-five years.
The law adds the proviso that lands purchased after 1 March 1943 would be subject to a 20-year verification period. The law also specifies a five-year hiatus between 1958 and 1963 that would not be counted toward this ‘prescription’ period.
According to COHRE and BADIL, by 1963, much of the lands in question had still not been surveyed. Therefore, calculations of the requisite 20-year verification period were in effect halted, and the State was in a position to press its own claims to these lands. The authors consider that the "Prescription Law" had even more complex ramifications. For example, Israel decided that British aerial photographs of 1945 would be used to verify cultivation. Arab farmers who had not yet begun tilling their lands at the timethe photographs were taken found they were by definition unable to meet the requisite 15-year ‘prescription’ period. Also, as Israel did not accept other evidence of cultivation, such as tax records, many Palestinians fell victim to a ‘Catch-22’: in the process of trying to establish their legal ownership they (retroactively) lost their lands.
According to COHRE and BADIL a 1965 report by the Israeli Land Administration (ILA) reflects on the rationale behind the law:
In the Northern area, there was a danger of the [acquisition of rights] by prescription according to the Statute ofLimitation (1958) regarding all State land, and those [lands] of the Custodian of Absentee Property and the Development Authority. Particularly in the area of the [Arab] minorities where various elements began to take over State land and those of the Development Authority, and [sic] there was worry that these lands would be taken away from the hand of the ILA [Israeli Land Administration] and be transferred to the ownership of the trespassers ["Report of the Activity of the ILA No. 4 (1964-1965)", quoted in Kedar, p. 170.] .
1948 Palestine war
1948 Arab-Israeli war
1948 Palestinian exodus
List of villages depopulated during the 1948 Arab-Israeli war
Law of Israel
Basic Laws of Israel
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